Transcript Tribunals and Best Interests - New Resources from CRSI Cork

Mental Health Tribunals
and the
Best Interests Principle
Darius Whelan
Promoting Social
Inclusion in
Mental Health
Conference
June 2008
Outline

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The Best Interests Principle
Review of Role of Mental Health Tribunals
High Court Cases on Tribunals – selected themes
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The Best Interests
Principle

Paternalism:
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Dictionary: A policy or practice of treating or
governing people in a fatherly manner, especially
by providing for their needs without giving them
rights or responsibilities.
In legal sense has positive and negative
aspects
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Paternalism – positive aspects
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Paternalism – negative aspects
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Example: Law requires wearing of seat belts
May imply adults being treated as children
“Superior” people decide what “inferior” people
need / “Nanny state”
Undue interference with autonomy, even where
no risk of harm to others
Eileen King, ‘Paternalism and the Law:
Taking a Closer Look’ (2004)
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 Re
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Philip Clarke (1949)
“The impugned legislation is of
a paternal character, clearly
intended for the care and
custody of persons suspected
to be suffering from mental
infirmity and for the safety and
well-being of the public
generally.”
(O’Byrne J.)
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Croke v Smith (1995 / 1996)
Budd J., High Court:
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“The certainties implicit in the judgment in
Clarke’s case in 1949 may be diluted by now”
Overturned in Supreme Court
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Gooden v St. Otteran’s Hospital (2001)
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“This passage [in Re Philip Clarke] has been
generally accepted as expressing the nature and
purpose of the Act of 1945. The Act provides for
the detention of persons who are mentally ill, both
for their own sake and for the sake of the
common good.” (McGuinness J.)
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Best Interests
S.4 Mental Health Act 2001:
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“In making a decision under this Act
concerning the care or treatment of a person
(including a decision to make an admission
order in relation to a person),
the best interests of the person shall be the
principal consideration
with due regard being given to the interests of
other persons who may be at risk of serious
harm if the decision is not made.”
“Due regard shall be given to the need to
respect the right of the person to dignity, bodily
integrity, privacy and autonomy.”
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
Also in s.4:
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Where it is proposed to make recommendation or
an admission order in respect of person, or to
administer treatment to person, person must be
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notified of proposal and
entitled to make representations
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Best interests = “Patient First” ?
No definition of best interests
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Not in original Bill in 1999
Contrast Mental Capacity Act 2005 (England and
Wales) – list of factors to consider, e.g.
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person's past and present wishes and feelings
beliefs and values that would be likely to influence his/her
decision if he/she had capacity, and
other factors he/she would be likely to consider if he/she
were able to do so.
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English case-law:
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“Best interests” involves balance sheet approach
– balance factors of benefit to patient against
those which do not benefit patient (Re A., 2000)
Respect patient’s right to self-determination as
much as possible (Bland, 1993)
Best interests are not limited to medical best
interests (Re M.B., 1997)
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E.g. include also financial considerations, religious
views of patient
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Some references to best interests in Irish
cases, e.g.
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In Re A Ward of Court (1995)
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2001 Act radically reformed mental health law
Outmoded thinking in 1945 Act was
supposed to be superseded
High levels of detention under 1945 Act to be
reduced
Tighter criteria for detention
Patients’ rights / autonomy emphasised
Best Interests principle intended to reflect
new approach
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‘Best interests’ principle particularly
important as regards decision whether to
detain
S. 3 – Detention criteria include
a)
b)
Serious likelihood of person causing
immediate and serious harm to self or
others OR
Impaired judgement so that failure to admit
would be likely to lead to serious
deterioration or prevent appropriate
treatment
AND detention and treatment would be
likely to materially benefit or alleviate
condition
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Parens patriae – Duty of state to step in when a
person is unable to care or provide for themselves
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Some service users object to this category
UN’s MI Principles include this ground (MI Principle
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Police Power – Protecting citizens from harm
(“harm criterion”)
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Person with mental disorder may harm others
Person may harm himself/herself
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“In my opinion the best interests of a person
suffering from a mental disorder are secured
by a faithful observance of and compliance
with the statutory safeguards put into the
2001 Act by the Oireachtas.” [O’Neill J.,
W.Q. v Mental Health Commission]
W.Q. approved by McMenamin J. in J.B.
(No.2)
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“s. 4 of the Act … in my opinion gives
statutory expression to the kind of
paternalistic approach mandated in the case
of Philip Clarke and approved in the case of
Croke v. Smith and also … Gooden v. St.
Otteran's Hospital.”
[O’Neill J., M.R. v Byrne & Flynn]
 Difficult to see how this interpretation is
justified
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The protections put in place by the 2001 Act “are
detailed and specific and it is of the utmost
importance that they be observed to the letter, and
that no unnecessary shortcuts creep into the way in
which the Act is operated.”
“It cannot have been the intention of the Oireachtas
when it enacted this piece of legislation that its
provisions would have to be acted upon in such a
literal way that the best interests of the patient would
take second place to those best interests.”
Peart J., P.McG. -v- Medical Director of the Mater
Hospital
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Section 4 “highlights the patient-centred
focus of the Act’s purpose. The Act proceeds
to set forth a scheme whereby at all stages
the constitutional rights of the patient are to
be respected and protected. …
The scheme in this regard has been
appropriately described as paternalistic in
nature. Its purpose is to protect the rights of
the patient as well as to care for the patient.”
[Peart J., J.H. v Lawlor]
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Review of Role of Mental
Health Tribunals
Mental Health Commission
www.mhcirl.ie
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Mental Health Tribunals (MHTs)
Consultant
Psychiatrist
Chairperson:
Barrister / Solicitor
Another
Person
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Functions of MHTs
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Main function: automatic review of detention
of patients detained involuntarily
Other functions:
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Role in decisions concerning psycho-surgery
Role in transfers to Central Mental Hospital
No role in following
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Treatment / medication decisions
Criminal matters – separate Review Board
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Psychiatrists involved:
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Responsible Consultant Psychiatrist (RCP) at approved
centre
Second opinion psychiatrist
Psychiatrist member of Tribunal
Second opinion psychiatrist tends to agree with
approved centre psychiatrist
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Statistics
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2,248 MHT hearings in 2007
256 (11%) revoked at hearing
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“Revoked” means MHT ordered patient’s release
3,422 admissions / renewals/ regradings
1,444 (42%) revocations before hearing by
Responsible Consultant Psychiatrist
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Representation
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Patient normally uses services of legal
representative assigned by Commission
Important protection for patient’s rights
Training
Legal Aid Scheme + Terms and Conditions
Fees
Legal representative has duty to challenge
legal basis for detention (“raise
technicalities”)
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Timing
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MHT hearing and decision within 21 days of
making of order
As regards first review, this may not be
“speedy” enough to satisfy ECHR
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L.R. v France (2002) – 24 days too long
Views of Dept of H & C, 2007:
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Tribunal hearings should take place at earliest
possible opportunity
14-day time period for second consultant’s report
should be reduced
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Renewal Orders
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First renewal can last up to three months
Second renewal up to six months
Third and subsequent renewals up to 12 months
Statutory form does not easily permit renewals for
lesser periods (Form 7)
No right to apply for MHT hearing between renewals
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While automatic reviews are desirable, they
do not necessarily fully comply with Article 5
“The detainee’s access to the judge should
not depend on the good will of the detaining
authority.”
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Rakevich v Russia (2003)
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Pre-MHT Hearing
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MHT Chair has no powers prior to hearing,
e.g. to call a witness (contrast England and
Wales – rule 5 MHRT Rules 1983)
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Nature of MHT Hearing
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Questions are asked by the tribunal on the
one hand, and by the patient or his/her
lawyer on the other
Patient appears to be only party
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Second opinion psychiatrist does not give
evidence
Possible fair procedures issues
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Procedure of MHT determined by tribunal
itself
Draft Procedural Guidelines from Mental
Health Commission
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Tribunal must confirm or revoke admission or
renewal order
To affirm order, MHT must be satisfied that
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patient is “suffering from a mental disorder” and
certain procedures have been complied with, or, “if there
has been a failure to comply with [these procedures], that
the failure does not affect the substance of the order and
does not cause an injustice.”
If revoke order, must direct that patient be
discharged from approved centre
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No statutory power to
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make a conditional discharge, or
defer a discharge
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MHT may not consider questions of
compliance with procedures not listed in its
powers
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Cannot consider compliance with 1945 Act
E.g. cannot consider compliance with
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S.13 2001 – removal to approved centre
S.17 2001 – referral of admission order to MHT
S.22 2001 – Transfer of patient to hospital
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Burden of Proof
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Act does not deal specifically with question of
burden of proof
Act states MHT must be satisfied of certain
matters if it is to affirm order
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English legislation required patients seeking
discharge to demonstrate to the tribunal that
they did not meet the standard of
confinement (s.72(1)(b) MHA ’83)
English courts held s.72(1)(b) was
incompatible with the European Convention
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R v MHRT N & E London ex p H (2001)
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Hearings in private
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MHT hearings are held in private
A v Refugee Appeals Tribunal (2006)
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Arguably selected previous decisions of Mental
Health Tribunals need to be made available
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Media Reports
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Family 'kept in the dark' over sister's
condition – S. Tribune, 4 Nov. 2007
Status is revoked before tribunal sits – Irish
Medical Times, 5 Oct. 2007
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'Teething problems' behind early releases Irish Medical Times, 27 Jul. 2007
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Mental health reviews lawyers ‘adversarial’ –
claim – Irish Medical News, 9 Oct. 2007
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Status of doctors in mental health tribunals
quizzed – Irish Medical Times, 17 Aug. 2007
Major problems emerging with mental health
tribunals – IMO – Irish Medical News, 1 Oct. 2007
Tribunals hamper treatment of mentally ill –
Irish Examiner, 13 Feb. 2007
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Litany of failures dog Mental Health Act – Irish
Medical Times, 9 Feb. 2007
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Application under Article 40
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Habeas Corpus application
Application to High Court under Art.40 to
determine whether patient is being detained
in accordance with law
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(Note English position: habeas corpus remedy of
last resort; habeas corpus rarely used in mental
health cases)
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Judicial Review of MHT Decisions
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Grounds for review may possibly include the
following:
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MHT acted ultra vires its statutory powers
MHT breached rule against bias (nemo iudex in
causa sua)
MHT breached principle of audi alteram partem
MHT breached formal or procedural requirements
MHT failed to give adequate reasons for its
decision
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Appeals
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Patient may ‘appeal’ to Circuit Court against decision to affirm
an order within 14 days of receipt of notice of Tribunal
decision. s.19.
 39 appeals from 1 Nov. 2006 to end 2007
 Very limited ‘appeal’: Only on grounds that patient is not
suffering from mental disorder
 Burden of proof on patient
Unclear whether this complies with ECHR
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R v MHRT, N. & E. London, ex parte H. (2001)
Is an appeal stage different from first instance stage?
Delcourt v Belgium (1970) – Appeal courts should comply with
Art. 6
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Themes from Habeas Corpus
Cases
 Selected
themes only; with
emphasis on role of Mental
Health Tribunals
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“Only those failures of compliance which
are of an insubstantial nature and do not
cause injustice can be excused by a
Mental Health Tribunal” [O’Neill J., W.Q. v
Mental Health Commission]
“In my opinion the best interests of a
person suffering from a mental disorder
are secured by a faithful observance of
and compliance with the statutory
safeguards put into the 2001 Act by the
Oireachtas.” [O’Neill J., W.Q.]
W.Q. approved by McMenamin J. in J.B.
(No.2)
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“The greatest care must be taken to
ensure that procedures are properly
followed, and it ill-serves those whose
liberty is involved to say that the
formalities laid down by statute do not
matter and need not be scrupulously
observed.”
“To pretend that nothing wrong occurred
is to deny the right to liberty other than in
due course of law, and that is a slippery
slope down which I cannot bring myself to
venture.” [Peart J., A.M. v Kennedy]
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
“The Act … is intended to constitute a
regime of protection for persons who are
involuntarily detained because they are
suffering from a mental disorder. That
purpose will not, in my view, be achieved
unless the Act is complied with.”
[Hardiman J., M.D. v Clinical Director St.
Brendan’s]
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Contrast:
“The purpose of s. 18(1) of the Act
is to enable the Tribunal to affirm
the lawfulness of a detention which
has become flawed due to a failure
to comply with relevant time limits.”
[Charleton J., O’D. v Kennedy]
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“It is not appropriate to subject the
record to intensive dissection, analysis
and construction … The record is not to be
seen as, or treated as a discursive
judgment, but simply as the record of a
decision made contemporaneously, on
specific evidence or material, within a
specific statutory framework”
[O’Neill J., M.R. v Byrne & Flynn]

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[The requirement that the MHT must
give reasons for its decision] “is an
absolutely essential part of the
Tribunal’s functions and is necessary in
law because of the Tribunal’s very
considerable powers directly to affect
the rights of a patient, including his
right to liberty.”
“Neither the consultant psychiatrist nor
the Tribunal can avoid or frustrate the
review simply by the making of an
inadequate or insufficient record of the
exercise by them of the very
considerable powers conferred upon
them by statute.” [Hardiman J., M.D.]
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It is illogical for a MHT to find that
s.16 has been complied with and also
to find that, if it has not been
complied with, the failure does not
affect the substance of the order and
does not cause an injustice
“I cannot see how it can be certified,
as it was, that if there has been a
failure to comply with any such
provision then the failure did not
affect the substance of the order and
did not cause an injustice, unless the
precise failure in question is identified
and its effect ascertained.” [Hardiman
J., M.D.]
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If consultant certifies renewal under
s.3(1)(a) and MHT affirms under
s.3(1)(b), detention is lawful
In a great many cases there would
be substantial overlap between the
two definitions of mental disorder
[O’Neill J., M.R.]
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First renewal order expires after
three months
If MHT adjourns tribunal hearing
under s.18(4) that does not extend
the renewal order [Sheehan J., J.B.
(No.3)]
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Relevant period where a patient
was, apparently, a “voluntary”
patient was not in substance
voluntary
Detention held to be unlawful
[Clarke J., H. v Russell]
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“Serious likelihood” in s.3(1)(a) :
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“In my view what the Act envisages
here is a standard of proof of a high
level of probability. This is beyond the
normal standard of proof in civil actions
of ‘more likely to be true’, but it falls
short of the standard of proof that is
required in a criminal prosecution
namely beyond a reasonable doubt and
what is required is proof to a standard
of a high level of likelihood as distinct
from simply being more likely to be
true.” [O’Neill J., M.R.]
61
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In cases where detention found to
be unlawful, High Court has
facilitated fresh detention of patient
by delaying order for release
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
See also Áine Hynes, ‘The Mental
Health Act 2001 in Practice: A Legal
Representative’s Viewpoint’ – UCC
CCJHR Seminar, 2007 –
www.ucc.ie/en/ccjhr/events/
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English Commentaries
 Dolan
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et al (1999)
Only 9% of patients accurately
understood powers of tribunals
64% of patients happy with their
legal representation
46% believed tribunal format was
too formal
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 Ferencz
& Maguire (2000)
Tribunal hearings are alienating
experiences; patients given little
opportunity to speak.
 Argued tribunal hearings have
therapeutic quality
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 Richardson
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and Machin (2000)
Requirements of Mental Health Act
were discussed before hearing in only 1
of 50 cases
Questions asked at tribunals showed
clinical rather than legal focus
Reasons given for decisions often
inadequate
Reasons did not reflect issues at
hearing
Influence of judicial review on decisionmaking patchy at best
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Conclusions
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Tribunal system is generally robust and
appears to scrutinise cases closely
Some difficulties / issues have emerged in
operation of Act and interpretation by
courts
Best Interests may need to be clarified
either through legislation or case-law
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WORKSHOP

This afternoon’s workshop:
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Legal Issues in Mental Health:
Admission Procedures, Restraint and
Tribunals
Written Questions / Issues are
welcome in advance – please pass
them on to me
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References

www.irishlaw.org/mentalhealth/crsi-jun08/
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